Intelligent Design

In Defense of the Defendants’ Lawyers in the Dover Case

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I was going to post this in Gil’s “Literature Bluffing” thread, but it got too long, so I am putting it in this post.

Let me preface this comment by stating that I have not reviewed the transcript of the Dover trial in detail, and I am basing what I am about to say on the information in the thread to Gil’s post.  The defendants’ lawyers in Dover may indeed have done a poor job overall.  I have no opinion on the matter, but on the specific topic discussed in Gil’s post, I think they are getting a bum rap.

Here is the issue.  Several of the commentators wondered, “Why didn’t the defendants’ lawyers object when the plaintiffs’ lawyers placed a stack of books and articles in front of Behe and asked ‘have you read these articles that refute your testimony about irreducible complexity?’”  In other words, they want to know why the defendants’ lawyers did not object to the literature bluff coming into evidence, and some suggested the lawyers were negligent for failing to make this objection.

 

In defense of the defendants’ lawyers, they may have expected Judge Jones to exhibit a modicum of competence.  Their confidence in the judge’s acumen was obviously misplaced, but it was not negligent.  He is, after all, a federal judge. 

Let me explain.  When cross examining the other side’s expert it is perfectly fair to attack him by referring to the professional literature in his field.  In fact, the federal rules of evidence have a special exception to the hearsay rule for just this purpose.  Rule 803(18) states:

“(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.”

Now here is where it gets interesting.  A literature bluff is evidence of nothing, and a judge can never rely on it in his ruling.  Therefore, a defense lawyer is well within his rights to simply assume the judge will call the bluff and completely disregard the opposing lawyer’s characterization of the learned treatise. 

Look at the rule again.  It requires two things in order for evidence from a treatise to come in for the purpose of impeaching an expert.  First, the book or article must be established as a “learned treatise.”  Based on the quotes from Behe’s testimony, it is fairly clear that this step was met.  Behe admitted the books and articles were learned treatises. 

The next step is where the judge screwed up.  In order for the information in the treatises to come into evidence (which is an absolute prerequisite for the judge to rely on them in his opinion), the relevant statements must be read into evidence.  The treatise itself cannot come into evidence.

Here is a truncated example of how rule 803(18) is supposed to work:

Q.  Mr. Expert, in your opinion is the 2002 edition of Smith’s “How to Build and Maintain Widgets” a reliable authority on the building and maintenance of widgets?

A.  Yes.

Q.  OK, in your testimony earlier you said that a widget like the one that caused the accident in this case need be oiled only every 20 days.  Do you remember that?

A.  Yes.

Q.  But look here on page 20 of Smith’s book.  It says, and I quote, “It is important to oil widgets every 5 days.”  Do you see that?

A.  Yes,

Q.  So Smith, an expert in the field by your own admission, has a different view than you.

A.  Yes.

Notice that nowhere in his examination did the cross examining lawyer characterize Smith’s book.  In order for the contradicting portion of the learned treatise to get into evidence, the lawyer has to actually read it into the record and give the witness a chance to respond.

In short, a literature bluff should be impossible in a federal trial! 

In the Dover case, in order for the relevant portions of the articles to be admitted into evidence, the plaintiffs’ lawyers should have been required to read them into the record.  Jones committed a grave error in relying on the plaintiffs’ lawyers’ characterization of the books and articles.  Of course, none of the treatises provided a detailed account of how cooption could create an irreducibly complex system, and if the judge had done his job in requiring the plaintiffs’ lawyers to read the relevant portions into the record, it would have effectively called their bluff and we would not be having this discussion.

This is not complicated stuff.  Every law student studies Federal Rule of Evidence 803 in detail.  It seems to me that the defendants’ lawyers may have assumed Jones had a basic grasp of the rules of evidence and would not rely upon a lawyer’s characterization of a learned treatise as evidence of anything, much less critical evidence supporting his ruling.  Therefore, they probably thought there was no need to object to the plaintiffs’ cheap courtroom stunt, because any competent judge would have ignored it.

If anyone was negligent it was the Bush judicial team that allowed Jones to assume the robes in the first place.  The Bush administration – like so many Republican administrations – seems to be asleep at the wheel with respect to the appointment of judges.  Bush’s record is not an unmitigated disaster – there are a few very bright spots – but how anyone like Jones could wind up on the federal bench is utterly mystifying.  Give the Democrats credit.  They always pick judges who are on their team, while Republicans put ultra-leftists on the court with monotonous regularity.  For examples, Warren and Blackmun were both Republican appointees.  But never in the history of the nation, as far as I am aware, has a Democrat appointed a judge who turned out to be a closet conservative. 

Admittedly the Democrats have a much bigger pool from which to choose, but that is no excuse for Bush.  There are more than enough good state court judges and lawyers to fill every federal vacancy.  There is never a reason to settle for a mediocrity like Jones. – which is probably an insult to mediocrities.  Of course, the senator spoils system in which the President often defers to home state senators to make recommendations is partly to blame.  The president has to get his nominees through the Senate, and a single senator from the state in which the vacancy is located can derail a nomination (I’ve seen it happen).  This is an absurd practice that should be ended. 

 

30 Replies to “In Defense of the Defendants’ Lawyers in the Dover Case

  1. 1
    scordova says:

    BarryA,

    Since I was the one who was the principal critic in Gil’s thread of the defendant’s legal team (Thomas Moore Law Center), I want to say thanks for taking the time to set the record straight. I appreciate your comment on Judge Jones’ competence to preside in this case.

    I suppose I have really negative feelings toward the Dover School Board for doing what they did as well as the Thomas Moore Law Center who egged them on. They shoudd have heeded the recommendations of the Discovery Institute. Had they done so, the ID movement and students around the nation wouldn’t be suffering the consequences of their folly.

    Salvador

  2. 2

    Thanks for this post, Barry. What you say makes sense and challenges one of two things: Jones’s competence or his fairmindedness. I was an expert witness in this case for a time (until the TMLC fired me). It was clear early on that Jones was not favorably disposed toward the ID side. For instance, FTE, the publisher of the book under contention (i.e., OF PANDAS AND PEOPLE), was blocked from intervening in this case even though they had the biggest stake in the case’s outcome and had been raked over the coals by the ACLU during the discovery phase. All this to say, the TMLC had plenty of reason to suspect they were dealing with an unsympathetic judge and should have challenged the ACLU’s general characterization of the journal articles that were slapped in front of Behe.

  3. 3
    Strangelove says:

    How did the “literature bluff” weigh in on his decision? What prong of the Lemon Test was it used to help decide? It’s been a while since I read the decision, but it seemed to result in no more than an aside about Behe. Correct me if I’m wrong.

  4. 4
    Bob OH says:

    …statements contained in published treatises,…

    How relevant is this? The papers etc. weren’t used to provide statements, they were there to challenge Behe’s statement that there was no explanation for for the evolution of the immune system, by showing him a lot of articles about it. He admitted that he hadn’t read many of the artivcles presented: i.e. he had made his statement without having done his homework properly.

    There’s a transcript of the session here:
    http://www.talkorigins.org/faqs/dover/day12pm.html
    including an impressive photo of the books etc.

    Bob

  5. 5
    jwrennie says:

    Is there any reason this could not be appealed ? After all, this is a grevious error on the judges part, so that is what provides grounds for an appeal right ?

  6. 6
    Tom English says:

    barrya,

    You certainly make it appear that Judge Jones should not have been allowed plaintiffs’ counsel to make an exhibit of a mountain of literature on evolution of the immune system Professor Behe considered not good enough. All Mr. Rothschild did with the exhibit was to get Professor Behe’s assent to its legitimacy and its size. He read a number of the titles:

    “Q. I’m going to read some titles here. We have Evolution of Immune Reactions by Sima and Vetvicka, are you familiar with that?

    A. No, I’m not.

    Q. Origin and Evolution of the Vertebrate Immune System, by Pasquier. Evolution and Vertebrate Immunity, by Kelso. The Primordial Vrm System and the Evolution of Vertebrate Immunity, by Stewart. The Phylogenesis of Immune Functions, by Warr. The Evolutionary Mechanisms of Defense Reactions, by Vetvicka. Immunity and Evolution, Marchalonias. Immunology of Animals, by Vetvicka. You need some room here. Can you confirm these are books about the evolution of the immune system?

    A. Most of them have evolution or related words in the title, so I can confirm that, but what I strongly doubt is that any of these address the question in a rigorous detailed fashion of how the immune system or irreducibly complex components of it could have arisen by random mutation and natural selection.”
    http://www.talkorigins.org/faq.....day12pm139

    Don’t you imagine that if Judge Jones had invoked Rule 803(18) and stopped Mr. Rothschild making the publications an exhibit, Mr. Rothschild would have responded by trying to read the bibliographic information of all the publications to Professor Behe?

    It does not seem to me that Judge Jones took the exhibit as evidence against irreducible complexity. Instead he indicates that the publications cited by Miller played that role. From pp. 77-78 of the decision:

    “The immune system is the third system to which Professor Behe has applied the definition of irreducible complexity. Although in Darwin’s Black Box, Professor Behe wrote that not only were there no natural explanations for the immune system at the time, but that natural explanations were impossible regarding its origin. (P-647 at 139; 2:26-27 (Miller)). However, Dr. Miller presented peer-reviewed studies refuting Professor Behe’s claim that the immune system was irreducibly complex. Between 1996 and 2002, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. (2:31 (Miller)).”

    That’s the end of that. In the next sentence, Judge Jones turns to the debacle:

    “In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not “good enough.” (23:19 (Behe)).”

    We find that such evidence demonstrates that the ID argument is dependent upon setting a scientifically unreasonable burden of proof for the theory of evolution.”

    It seems to me that Behe’s response to the literature is treated as evidence, not the literature itself.

  7. 7
    russ says:

    “Is there any reason this could not be appealed ? After all, this is a grevious error on the judges part, so that is what provides grounds for an appeal right ?”

    Comment by jwrennie — August 10, 2006 @ 12:59 am

    There was a school board election, and members who supported the original suit were voted out of office. The new school board chose not to appeal since they disagreed with the original suit.

  8. 8
    russ says:

    Tom English: “It seems to me that Behe’s response to the literature is treated as evidence, not the literature itself.”

    Comment by Tom English — August 10, 2006 @ 1:59 am

    What literature? At least from what’s been presented here, all that was presented in court was a list of titles and book covers (which, incidentally, Jones refers to as “evidence” in your quote, though perhaps not in a legal sense). No arguments from these books were presented. Can controversial scientific ideas now be refuted with authoritative-sounding book titles?

  9. 9
    BarryA says:

    Tom English

    Thank you for your quotations from the record. It now seems that I gave Judge Jones too much credit. If no expert testified that the books and articles were authoritative that should have been the end of it. The judge should have stopped them right there. In other words, the plaintiffs did not even make it through the first Rule 803(18) hoop, much less the second. Maybe I also gave the defendants’ lawyers too much credit. Once Behe testified that he was unfamiliar with a particular book or article they should have objected to any further reference to it or use of it.

    In his opinion Jones wrote: “Dr. Miller presented peer-reviewed studies refuting Professor Behe’s claim that the immune system was irreducibly complex.” Another grave error. Look at the rule again. Learned treatises can come in ONLY on cross examination. Dr. Miller was the plaintiffs’ witness. Therefore, he could have presented the studies in question only on direct examination. If the defendants’ lawyers did not object to this on hearsay grounds, then they made a serious mistake.

    Your final quote makes my point for me. This is where the judge relied upon the literature bluff to support his conclusions. Behe’s response to the literature bluff is evidence of nothing, because the judge never should have allowed the bluff to begin with. So, allowing the bluff was error one; using Behe’s reaction to the bluff to support his ruling was error two.

    “Don’t you imagine that if Judge Jones had invoked Rule 803(18) and stopped Mr. Rothschild making the publications an exhibit, Mr. Rothschild would have responded by trying to read the bibliographic information of all the publications to Professor Behe?”

    No. When I say rule 803(18) requires the lawyer to read the relevant portion of the text into the record, I mean that the substantive statements in the text proving the lawyer’s point must be read into the record. In Dover that would have required the lawyer to point to the exact place in each and every article where evolution of the irreducibly complex mechanism is explained and read it into the record. Reading the bibliography does not meet this requirement. That’s just another literature bluff.

  10. 10
    BarryA says:

    Salvador

    “I suppose I have really negative feelings toward the Dover School Board for doing what they did as well as the Thomas Moore Law Center who egged them on.”

    Bill

    “the TMLC had plenty of reason to suspect they were dealing with an unsympathetic judge . . .”

    Agreed. From everything I have seen and read, there were red flags going up all over this case. Also, it does not appear that the defendants conducted themselves in a manner that was beyond reproach. There should be at least two prerequisites to any ID test case. (1) the case should be in a court where we think we can get a fair shake; and (2) the parties defending the ID position should be squeaky clean. It does not look like either of these conditions was met in Dover.

    Oh, and Bill, it seems like all your posts are from the wee hours. Are you one of these people who can get by with only three or four hours sleep? Must be nice. I’m bleary-eyed if I don’t get at least six.

  11. 11
    BarryA says:

    Strangelove

    “How did the “literature bluff” weigh in on his decision? What prong of the Lemon Test was it used to help decide?”

    You can see how the literature bluff weighed in the decision in Tom English’s quote from the opinion. Judge Jones used the literature bluff to support his conclusion that ID is not science but a stalking horse for creationism, which in turn allowed him to use the creation cases as support for his ruling that ID violates the Establishment Clause. Surely you admit that Jones used the bluff to support his ruling, or are you suggesting that his reference to it was purely gratuitous?

  12. 12
    BarryA says:

    russ

    “Can controversial scientific ideas now be refuted with authoritative-sounding book titles?”

    Your rhetorical question is the point of my post in a nutshell. Under Rule 803(18), the answer is an unambiguous “no.”

  13. 13
    tribune7 says:

    Great post, Barry

    But never in the history of the nation, as far as I am aware, has a Democrat appointed a judge who turned out to be a closet conservative.

    Well there was Whizzer White 🙂

  14. 14
    SteveB says:

    “they may have expected Judge Jones to exhibit a modicum of competence.”

    Sure. And baseball managers expect umpires to exhibit a modicum of competence–to know the rules and apply them evenly. The issue here is what does the manager do when the umpire fails to do that, and perhaps more importantly, _when_ does he do it?

    Yes, Jones should have put the kibosh on the theatrics, but when he failed to do so, shouldn’t counsel have defended their client according to the Federal Rule of Evidence which “Every law student studies… in detail”? Isn’t that the modus vivendi of any defense counsel? To quote another famous counsel for the defense, “[are they] just a potted plant?”

    Calling the bluff _now_ strikes me as being like the losing manager of last year’s world series complaining about his star player who was unfairly obstructed in the bottom of the 6th in game three… it’s a little late for that; the game’s been over for a while.

  15. 15
    Joseph says:

    I take this “episode” as a lesson learned. Hopefully the DI or some other IDists are pouring over those books and articles to see if they say what the ACLU lawyers claimed. That way IDists are better prepared.

    However I think Dr. Behe should have taken them to task while he was on the stand by asking if those references made reference to some blindwatchmaker-type process and asking them to point that out in EACH reference source. Or he could have asked for time to read those references to see if they said what the plaintiffs said they did.

    BTW Dr. Behe never uttered the words “not good enough”. As for Miller’s testimony, why was that taken over Behe’s refuting testimony? IOW Behe refuted Miller but not the 58 other books and articles.

  16. 16
    BarryA says:

    tribune7

    “Well there was Whizzer White.”

    I knew someone would bring up White as a counter example. Yes, White was appointed by Kennedy, but he was a not a conservative in the mold of Scalia or Thomas. He was a centrist. He only appears to be conservative, because he sat on an ultra-leftist court (Warren) and a not-quite-so-ultra-leftist court (Burger). Only in comparison to his colleagues on those courts could White be considered conservative. Then, again, Joseph Stalin was probably to the right of some of the members of the Warren court (especially Douglass, who was a real wack-a-doodle who wrote that rocks and trees have rights).

  17. 17
    Strangelove says:

    BarryA :”Surely you admit that Jones used the bluff to support his ruling, or are you suggesting that his reference to it was purely gratuitous?”

    That’s exactly what I’m suggesting. Notice how Jones says that Miller refuted Behe, and “in fact” Behe dismissed the 58 books and articles. The “in fact” gives me the impression that it didn’t lead him to the decision, but Behe’s behaviour further supported that decision, gratuitiously. That’s how I use “In fact” anyway. Are you suggesting anything different?

  18. 18
    BarryA says:

    Strangelove,

    To paraphrase Wesley to Vizzini in the “Princess Bride,” “Your argument is truly dizzying.” So dizzying in fact that I admit I don’t understand it.

    I am no fan of Jones, as should be obvious from my post, but at least I give him credit for not stuffing his opinion with gratuitous references to unimportant matters. I grant you the right to have even less respect for his competence as a judge than I do.

  19. 19
    Joseph says:

    The main problem for Intelligent Design is perfectly illustrated by/ in this thread.

    When IDists hear irreducible complexity we understand it as Could not have evolved via Darwianian,ie blind watchmaker, processes and are better explained via the design inference.

    Anti-IDists promote IC as (and it appears many are buying their story) could not have evolved. The difference huge but not (unfortunately) always obvious.

    I even heard “Bill Nye the science guy” claim ID claims species are static- of course he first stated that ID=Creation- Yet NEITHER state that species are static!

    That is the obstacle ID faces. Misinformation.

    Anyone own a bulldozer? 🙂

  20. 20
    jerry says:

    I have not read any of the 58 articles/books that were put down in front of Behe nor do I feel capable of understanding most of them without a lot of guidance on what particular terms might mean. But I do understand human behavior and I know that just about every biological process has been written in such a way that a mother can understand. Which is a phrase that the lawyer in the Dover case used when talking to Ken Miller.

    So understanding human nature and knowing that the immune processes could probably be written in a less technical way so all of us could follow the logic I have come to the conclusion that the 58 references do not support the evolution of the immune system. Why, because if they did then someone would want to pile on and shove it in our faces that here is a well documented and scientifically accurate description of a process that proves Behe a fool. But if they did so then their interpretation of the 58 documents would be on paper where their logic and accurate interpetation could be challenged.

    Since no such document has arisen and knowing the mindset of Darwinists, the only conclusion is that the 58 documents were a giant bluff.

    An additional point. If sometime someone comes along and provides a thoroughly documented description of the Darwinian evolution of one of the examples of IC, then so what. I will say nice job but there are hundreds of these IC cases and just because you have shown 1 of several hundred has been solved does not mean that they all will be. Maybe they will be but solving one does not eliminate the objection. Now if they solved a large number, say over 50% of the examples, then it would be time to admit that IC may be just a God of the Gaps argument but till then there is essentially nothing but gaps with not even one solution.

  21. 21
    Bob OH says:

    Looking at the transcript, this caught my eye:

    Q. And I’m correct when I asked you, you would need to see a step-by-step description of how the immune system, vertebrate immune system developed?

    A. Not only would I need a step-by-step, mutation by mutation analysis, I would also want to see relevant information such as what is the population size of the organism in which these mutations are occurring, what is the selective value for the mutation, are there any detrimental effects of the mutation, and many other such questions.

    I haven’t seen the bar for demonstration of a theory raised this high elsewhere. Is it typical for ID to demand that for a theory about how a system developed, every step needs to be described, complete with all details? Or was Behe setting the bar exceptionally high?

    Bob

  22. 22
    KL says:

    This is my first post, so bear with me. I am married to a research scientist (not a biochemist, however) When publishing, one of the steps in peer review is questions regarding pertinent literature. If any scientist submits a paper for review, and the background literature has not been correctly covered or cited, then the paper is returned for further work. That is why scientists ask for their paper to be reviewed by scholars familiar with their field. If a claim is made that would be refuted by existing published papers, the reviewers point it out (it’s kind of embarrassing; you should make sure you have read all of the current primary literature pertaining to your study, and indeed, cite it as comparison or contrast to your specific work. This is one of the “self-correcting” steps in peer review publication, and it is why scientists value it.) If Dr. Behe had read the literature and cited it to support his work, he would have showed correct scholarship (crossing his t’s and dotting his i’s, you could say). If more work was done by others in the intervening 10 years, and his ideas are no longer valid, then his book is outdated and needs to be brought up to date and published with a new edition. By allowing 10 years of published work to pass him by in his specific area of interest is poor scholarship.

  23. 23
    KL says:

    Sorry-let me adjust. I am married to a professor who is also a researcher (science). He does do research and publishes, as most do. I didn’t mean for that to mislead.

  24. 24
    Charlie says:

    By allowing 10 years of published work to pass him by in his specific area of interest is poor scholarship.

    He didn’t.
    He has been answering charges and updating his knowledge all along.
    See his Dover testimony for reference to work done in 2004 and 2005.

    ps.
    The papers Rothschild dumped in Behe’s lap dated as far back as 1971

  25. 25
  26. 26
    KL says:

    There is an annotated list linked to an older thread on this blog. http://www2.ncseweb.org/kvd/ex.....d_bib.html
    There are six entries before 1990, but thirteen more before DBB (most in 1994). Are these referenced in DBB? I have not read it, so I cannot comment beyond the question regarding the trial. Has he published updates that reference the papers since 1995? I hope to read this and other books by ID experts this fall; I may answer my own questions then.

  27. 27
    Tom English says:

    Barry,

    “Dr. Miller was the plaintiffs’ witness. Therefore, he could have presented the studies in question only on direct examination. If the defendants’ lawyers did not object to this on hearsay grounds, then they made a serious mistake.”

    What’s the problem with direct examination? From Rule 803(18): “To the extent … relied upon by the expert witness in direct examination…”

    Witnesses on both sides made slide presentations with references and quotations of published work. The presentations were on direct examination. Both sides agreed to have printed copies of the slide presentations entered as exhibits.

    Barry: “So, allowing the bluff was error one; using Behe’s reaction to the bluff to support his ruling was error two.”

    From the federal rules of evidence:

    “Rule 103. Rulings on Evidence

    (a) Effect of erroneous ruling.

    Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

    (1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context….”

    Was a substantial right of the Dover Area School District affected? Did DASD’s counsel object? Am I misunderstanding the issues here?

    Behe’s response to the stack of literature is given two sentences of commentary in the decision. Delete the two sentences and tell me if any finding is no longer supported.

  28. 28
    Tom English says:

    Barry,

    “There should be at least two prerequisites to any ID test case. (1) the case should be in a court where we think we can get a fair shake; and (2) the parties defending the ID position should be squeaky clean. It does not look like either of these conditions was met in Dover.”

    (2) The ID movement does not choose the test cases. (1) Life’s a box of chocolates.

  29. 29
    Joseph says:

    Bob OH:
    I haven’t seen the bar for demonstration of a theory raised this high elsewhere. Is it typical for ID to demand that for a theory about how a system developed, every step needs to be described, complete with all details? Or was Behe setting the bar exceptionally high?

    Actually if you see the standard set for ID then Behe just makes the playing field a level one.

    What Dr Behe is saying is that if we don’t know the data he is asking for then all discussions about biological structures should be OPEN- ie not restricted to pupose-less, non-goal oriented processes such as random mutations (genetic accidents) culled by another unmeasure-able force- natural selection.

  30. 30
    MikeFNQ says:

    Jerry said: Now if they solved a large number, say over 50% of the examples, then it would be time to admit that IC may be just a God of the Gaps argument but till then there is essentially nothing but gaps with not even one solution.

    Ah, if only that were true… What would really happen is that you would then say “No, explain 100%”, then “Oh, here’s Darwin’s Black Box Volume 2! Explain 50%… 100% Volume 3!!” Ad nauseum

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